This note discusses how the binary view of gender in relation to public bathroom segregation is insufficient to meet the diverse needs of the public and proposes the desegregation of bathrooms as the solution to promote gender equality and reduce gender-based social imbalances. This note will focus on the bathroom rights of individuals who identify outside of the binary options of male and female, viewed through the lens of how transgender people identifying within the binary have been treated by the courts. For the purposes of this note, the term non-binary will be used to refer to these individuals. Part I provides a brief overview of recent bathroom legislation in the United States, the statutory and constitutional framework that has been applied to sex discrimination claims, and the courts’ treatment of gender-based discrimination claims under each law. Part II analyzes gender-based discrimination claims in relation to public bathroom access under this framework in light of how courts have treated gender litigation and addresses widespread myths about privacy and safety concerns. Part III proposes the complete desegregation of bathrooms based on gender, considers which legal claim is the best avenue of implementing desegregation, delineates the benefits of such implementation, and addresses potential concerns raised by this proposal.
Timothy J. Graves,
Breaking the Binary: Desegregation of Bathrooms,
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol36/iss2/4